The Outsider Perspective Issue 112

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Good Friday Morning!The world is crazy. That’s all I have to say as I write this edition. Last week when I hit send button, the Brett Kavanaugh news was breaking, and I didn’t have a clear indication of what was going on to do a full write-up. Well, it’s been a week, and I know a lot more, and like last week, a significant aspect broke just before I started writing, and it leaves me pretty much speechless. Ed Whelan, one of the most well-connected conservative lawyers in DC, who I know knows what he’s talking about, tweeted out his theory of what happened. And it’s crazy. I’ll get into that below. Links follow.

If I had to make one arching point about the entire Kavanaugh process, it’s that Scalia was right in his dissent in Planned Parenthood vs. Casey. These nomination battles will only get worse until the Supreme Court is returned to its place as envisioned by the Founders.

The Kavanaugh nomination goes from crazy to… something entirely else

Going into Thursday, from reading what the GOP was saying, seeing Sen. Grassley’s letters to the Democrats on the committee (all three are great: 1, 2, and 3), and listening to what well-connected lawyers on the right were saying, I felt 90% sure Kavanaugh was going to get confirmed. That was up significantly from last week where I was below 25%.

Now… I’m probably down to 50%. And that’s all thanks to attorney Ed Whelan.

Whelan is one of the most well-connected conservative lawyers in DC. He’s well-regarded and generally lucid in what he says. He’s been involved with every SCOTUS nomination for Republicans going back to Ruth Bader Ginsburg, and he’s served in a variety of contexts. I routinely tell people to follow Whelan during any judge nomination process because he knows everyone. He also knows Brett Kavanaugh.

Thursday evening, Whelan sent a series of tweets, beginning here, all of which boils down to the defense of Kavanaugh wasn’t there when Christine Blasey Ford claims she was sexually assaulted. Instead, Whelan insists, it was potentially another person who looked like Kavanaugh, a man named Chris Garrett (side by side pictures).

In Whelan’s defense, he’s not the first to float this theory. After Republicans talked with Kavanaugh again after the allegations surfaced (during a session Democrats were invited to, but didn’t attend), Sen. Orrin Hatch came out and suggested that it was a case of mistaken identity. And a Washington Post columnist floated the same theory.

But only Ed Whelan has thrown a name out there. Whelan tweeted his theory out without the knowledge of the Senate Judiciary committee.

I have two reactions to Whelan’s tweets.

One: He better be right. Otherwise, Chris Garrett, the man he names, has an absolute case for defamation against Whelan. I mean, a good lawyer could produce a solid defense for Whelan, but a great lawyer would probably try to settle before sniffing a trial.

Two: If Whelan is right, the only way this theory works is if Garrett goes in and admits he’s the one who did it. And it would help if the other witnesses agreed. Then you have everyone’s word against Ford’s in that case on who it is. She’s already indicated she has a poor memory with a past with mental issues.

Otherwise, this entire stunt is worse than just about everything Democrats have done thus far in the proceedings. That is saying something since it was Democratic staffers who leaked Ford’s identity and story to the press against her wishes.

I don’t understand why Whelan tweeted out what he did, at all. Everything could have gone to the Senate Judiciary Committee where they could have investigated things further.

But here we are…

What continues to give me pause on doubting all of this and thinking Kavanaugh is wholly sunk is the fact that Ed Whelan isn’t crazy. I’ve seen him take hardline stances before, but I’ve never seen him make a crazy one. And Republicans closed ranks incredibly fast after the initial fallout of the Ford accusation.

That suggests a few things.

First, there aren’t any other accusers. In this #MeToo era, there’s usually a pattern of behavior that gets exposed when journalists and lawyer dig into the past. That isn’t happening here. And I’ve heard rumors, though can’t source them, that Lisa Banks, the attorney for Christine Blasey Ford, has sent letters and feelers out among Kavanaugh’s old classmates looking for any other victim or claims.

That makes sense because even one more accusation against Kavanaugh probably sinks him. The evidence and testimony points in the exact opposite direction. All of Kavanaugh’s ex-girlfriends, female clerks, and women in his high school have signed and signaled their support of him.

Second, even if you take Ford’s accusations at face value, there’s not much to go on. Democrats seem to realize this which would explain why Sen. Diane Feinstein sat on the allegation for six weeks. Ford taking things like a lie detector test and lawyering up in August, well before going public, signals that all the Democrats involved knew this was a long shot with little evidence.

When Democrats have said they can’t vote for Kavanaugh, they’re not relying on Ford’s accusations; they’re counting on other issues.

Feinstein herself even said she didn’t know if everything Ford was saying was truthful. She later clarified and said Ford was “credible,” but the truth line was still there.

Third, all of the conditions and requests by Ford’s lawyers are obvious delay tactics. The FBI request, the safety concerns, the “can’t do Monday” issues, all of it reeks of desperate delay tactics. When each tactic gets pushed by Senator Grassley, they fall apart.

And as an aside, there’s nothing for the FBI to “investigate” here. All they’d end up doing is interviewing Ford and Kavanaugh and sending that information to the White House, who would, in turn, send it to the Senate. There would be no evaluation of that testimony or anything, just an addition to a background check. And that’s a function that the Senate is better equipped to do in this case. The Anita Hill case was different because the accusations got sent to the committee, who then informed the White House. There was a procedure. Democrats destroyed all processes in this case.

Perhaps the worst part of this is that the way Democrats have handled this case, and the way some conservatives have reacted, have irreparably harmed the #MeToo movement. It’s been an absolute good for light to get shined on so much injustice in the world. Senator Chuck Grassley’s letter to Democrats put this concern well:

I’m also concerned what the recent events mean for whistleblowers, especially victims of sexual assault. Dr. Ford expressed the desire that her allegations remain non-public. I can’t emphasize how important it is to respect whistleblowers’ and victims’ desire for confidentiality. But notwithstanding her wishes for confidentiality, her allegations became public. I fear that the leaks of confidential information will discourage whistleblowers and victims from coming forward in the future.

Democrats are the only ones who knew Ford’s identity; they still haven’t sent an unredacted copy of Ford’s letter to the Senate Judiciary committee. So we know Democratic staffers leaked Ford’s name to the press.

I’ve read some thoroughly distasteful hot takes from conservatives as well. I won’t link them, but I expected better from some of the big names out there than just saying, “it’s teenage boys being teenage boys.”

And you combine that with the offensive death threats sent to Ford and Kavanaugh and their families, and you get just a taste of the toxic political environment.

With all of that said, right now I still think Kavanaugh gets confirmed. If Democrats had an ace-in-the-hole they could play, they’d have leaked it to the press by now. If Republicans knew they had a losing hand, they’ve have pulled Kavanaugh and tried to push through another nominee quickly. Barring some other surprise, I think Kavanaugh gets confirmed on party-line votes.

Negotiations are ongoing as I go to press on whether Ford testifies at all. I think she will because if she doesn’t, Kavanaugh’s confirmation odds are 100%. If Democrats want to derail him, their only hope is her testimony. Republicans won’t allow for endless delays that prevent Kavanaugh from starting October 1st.

And as an aside: these ugly confirmation battles will only get worse until the Supreme Court returns to the Founders vision for it. See my article link near the top.

U.S.—Show runners for Sesame Street have come forward to deny accusations that Bert and Ernie are in secret service to the Kremlin, feeding information to Russia’s leaders in order to undermine the interests of the United States.

The statement came in response to a writer for the show, who stated that he’s “always thought of Bert and Ernie as KGB” while writing their scenes. Viewers pointed out that Ernie’s constant reminiscing over “the Motherland” and Bert’s propensity for reading Communist literature as he ignored Ernie’s incoherent ramblings suggested that the two may actually be Russian agents.